A victory for discretion? Testamentary freedom and the Inheritance (Provision for Family and Dependants) Act 1975

The Supreme Court last week brought to an end 12 years of litigation in the case of Ilott v The Blue Cross and others which involved important principles of English law. One of these is the respect for testamentary freedom: ie. an individual is free to decide who will (and will not) benefit from their estate when they die. This approach differs to other countries where the inheritance of spouses, partners and children may be fixed by law (to varying degrees).

This principle has in recent decades become subject to statutory intervention in the form of the Inheritance (Provision for Family and Dependants) Act 1975. Under this legislation, qualifying classes of person (including spouses, cohabitants and children of the deceased) may make a claim under the Act if ‘reasonable provision’ has not been made for them under the deceased’s will or under the intestacy rules. The court, on finding a lack of such provision, has a wide discretion to make an award, considering a range of factors that are listed by statute.

It was this process that the seven judges of the Supreme Court had to consider in Ilott. The case has been highly publicised. It concerns the decision of the claimant’s mother to make no provision to her estranged daughter in her will, instead leaving the entirety of her estate to charity. The estrangement lasted for many years and the daughter has lived in ‘straightened’ financial circumstances independently of her mother. She has a husband and five children. The deceased had no particular relationship with the charities. The value of the estate came to over £400,000.

The history of the litigation can be summarised as follows, though this is something of a simplification. The first instance judge weighed up all the factors in the case and, on finding no reasonable provision, made an award of £50,000 to the claimant. The claimant appealed and the Court of Appeal upped the award to £143,000. The charities then took the case to the Supreme Court.

The leading judgment was given by Lord Hughes, with whom all the others agreed. In his judgment, he held that the first instance judge had made no error, and therefore his judgment should not have been interfered with by the Court of Appeal. He emphasised that judges in these cases have to conduct a careful balancing exercise, weighing up all the factors and assessing the relative strength of each. The process therefore necessarily entails a wide degree of discretion and difficult value judgements. In the present case the first instance judge had considered the wishes of the testator and the prolonged estrangement of the daughter to be the key factors. Lord Hughes found that this reasoning was not in error and therefore concluded that the original decision should stand.

This judgment from a strong and unanimous Supreme Court bench returns a large measure of discretion to first instance judges in these cases. By giving weight to testamentary freedom, the judgment also upholds the discretion of testators, whose express wishes it may now be more difficult to overturn, particularly in cases of estrangement.

Lady Hale added to the leading judgment with a criticism of the current law. She highlighted a lack of guidance as to how much weight should be given by judges to the competing factors, making it very difficult for first instance judges. She set out the wide range of reasonable outcomes that judges, exercising their proper discretion, could have reached in this case. Whether you agree with her criticism really depends to what extent you trust judges to make value judgments, or whether you would prefer further intervention from the elected legislature.